SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

A142/06

		JUDGMENT   of   SHERIFF GRAHAM KENNETH BUCHANAN
		in the cause
		TREVOR FRANCIS THORPE
		PURSUER
		against
		ABERDEEN CITY COUNCIL
		DEFENDERS

 

 

 

 

 

Act:	Smith, Raeburn Christie Clark & Wallace, Solicitors, Aberdeen.
Alt:	McLaren, Ledingham Chalmers, Solicitors, Aberdeen.

 

 

 

 

ABERDEEN, 22^nd June 2007.

 

The sheriff, having resumed consideration of the cause, finds in fact that:-

 

(1) At about 11.30 pm on 10^th March 2003 the pursuer was walking in a south east direction on the west pavement of Powis Terrace, Aberdeen. He was looking straight ahead and watching where he was going.

 

(2) At a point just outside the house at 33 Powis Terrace the pursuer heard the bang of a door being slammed behind him. He was taken by surprise and turned round to look.

 

(3) As he turned back his left foot caught on an uneven and broken surface of the pavement causing him to fall and injure his left shoulder.

 

(4) The said unevenness was constituted by a ridge between two paving slabs which was at least 23 millimetres in depth.

 

(5) The surface of the pavement in that part of Powis Terrace had been broken and uneven for at least 6 months prior to the pursuer's fall.

 

(6) The depth of the ridge at the point on the pavement where the pursuer fell had been at least 23 millimetres since 25^th February 2003 or earlier.

 

(7) Prior to the pursuer's fall his neighbour, Mr Ian Smith, complained to members of staff at the roads department of the defenders about broken slabs and unevenness on the west pavement of Powis Terrace.

 

(8) Mr Smith was told that the defenders recognised that the pavement required improvement but the necessary work could not be done within the existing budget. It was indicated to him that these matters were dealt with on a priority basis and that the pavement might have to deteriorate further before any remedial work would be carried out.

 

(9) No remedial work was, in fact, carried out between the time of these conversations and the pursuer's fall. The defect at the point where the pursuer fell was, however, repaired some weeks after the accident.

 

(10) The section of pavement was in constant use by members of the public around the time of the accident. It was a very busy area. There was a bus stop nearby and a doctors' surgery not far away on the corner of Calsayseat Road and Powis Terrace.

 

(11) Unevenness of the pavement caused by the existence of ridges between paving slabs of more than 20 millimetres in depth created a foreseeable risk of injury to pedestrians using the pavement.

 

(12) The policy of the defenders, in line with the practice of other local authorities throughout the country, was to categorise an unevenness of more than 20 millimetres as a Category 1 defect. It was also their policy to carry out inspections of the pavements in streets such as Powis Terrace on a monthly basis.

 

(13) The defenders' policy was that a Category 1 defect would be repaired within two working days of it being reported to them or noticed upon inspection.

 

(14) On 25^th February 2003 Mr Alan Duncan, a part-time employee of the defenders working in their roads maintenance department, carried out the monthly inspection of the west pavement of Powis Terrace. He did so on foot. This was the last inspection before the pursuer's accident.

 

(15) He failed to notice the unevenness of more than 20 millimetres in the pavement which on 10^th March 2003 caused the pursuer's accident.

(16) Mr Duncan failed to exercise reasonable care in carrying out the inspection of the pavement. If he had exercised reasonable care he would have noticed the defect which would have been obvious to him.

 

(17) If the defect had been noticed on 25^th February 2003 it would have been treated as a Category 1 defect and repaired before 10^th March.

 

(18) If the defect had been repaired by 10^th March 2003 the pursuer's accident would not have occurred.

 

(19) At the time of his fall the pursuer was not under the influence of alcohol.

 

(20) As a consequence of the accident on 10^th March 2003 the pursuer suffered loss, injury and damage which is agreed to amount to £12,500 net of any recoverable benefits payable to the Compensation Recovery Unit.

 

 

 

Finds in fact and in law that:-

 

(1) The accident to the pursuer on 10^th March 2003 was caused by fault and negligence and breach of statutory duty on the part of the defenders.

 

(2) The said accident was contributed to by the fault and negligence of the pursuer to the extent of twenty per cent.

 

(3) The pursuer having sustained loss, injury and damage thereby is entitled to reparation therefor from the defenders in the sum of £10,000.

 

 

Therefore: Sustains the first and fourth pleas-in-law for the pursuer and the sixth and seventh pleas-in-law for the defenders; Repels the third, fourth and fifth pleas-in-law for the defenders; Grants decree for payment by the defenders to the pursuer of the sum of TEN THOUSAND POUNDS STERLING, together with interest thereon at the rate of eight per centum per annum from the date of decree until payment; Finds the defenders liable to the pursuer in expenses; Allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and to report.

 

 

NOTE

In this action the pursuer seeks damages in respect of injuries he sustained when he tripped and fell on a pavement maintained by the defenders. It is agreed between the parties that if liability on the part of the defenders is established the pursuer will receive damages in the sum of £12,500 subject to any deduction which may be appropriate in respect of contributory negligence. The circumstances of the incident are set out fully in my findings in fact.

 

The first matter which I require to determine is whether the pursuer actually fell at the precise place indicated in the photographs which were lodged as productions. I have no difficulty in concluding that he did. I found the pursuer to be a generally credible and reliable witness and his evidence upon this point was quite clear. He said that after his fall he looked to check where his foot had caught on the "kerbie bit", as he put it, and he was certain that his recollection was correct. So I am quite satisfied that the place where his foot caught the ridge is as indicated by the pile of coins on the right of the row of coins shown in the photograph which is production 5/1/4.

 

The next question is whether the coins shown in the photographs produced are actually fifty pence and one pound coins. This is of significance because the pursuer relies upon the use of these coins placed at the point where he fell to indicate the depth of the ridge between the two paving slabs. It was a matter of agreement that a one pound coin has a depth of 3 millimetres and that a fifty pence piece has a diameter of 27 millimetres. I am in no doubt that when the pursuer's friend, Rawdon Middlebrook, took the photographs he used one pound and fifty pence coins and not ten pence coins. The pursuer was present when these photographs were taken and he was clear in his evidence that fifty pence and one pound coins were used. I accept his evidence about that. Mr Middlebrook became somewhat confused about the matter during cross-examination but said in re-examination that what he had said in a prior statement to the pursuer's solicitors was more likely to be accurate than his evidence in court. In that statement he had confirmed that fifty pence and one pound coins were used in the exercise. It also seems likely that the reason the parties entered into the agreement about the dimensions of the coins was that there was no dispute as to the denominations of the coins used in the measurement of the ridge.

 

That then leads on to the matters of the time when the ridge was measured and the precise depth of the ridge at that time. The pursuer's accident occurred on 10^th March 2003 and the evidence of the pursuer and Mr Middlebrook was generally to the effect that the photographs were taken one to two weeks after the incident. It is clear that the photographs were developed on 28^th March and in these circumstances I am inclined to the view that they were probably taken about two weeks after the pursuer fell.

 

The depth of the ridge at the time the photographs were taken is a matter of some importance. Proceeding as I do upon the basis that fifty pence and one pound coins were used in the measuring exercise I am in no doubt that the depth of the ridge at that time was at least 27 millimetres. The photograph which is production 5/1/3 shows this very clearly. However, proof of the depth of the ridge at the time the photographs were taken is of little assistance to the pursuer unless he can also establish the extent of the unevenness at the time of his fall and the time of the inspection by Mr Duncan. The inspection was carried out on 25^th February and the accident occurred on 10^th March. So there was a lapse of just about a month between the date of the inspection and the date Mr Middlebrook took the photographs. The conclusion which I have reached is that given the short time scale involved I can reasonably draw the inference that the defect which was clearly identified at the time the photographs were taken was also present when Mr Duncan carried out his inspection and when the pursuer suffered his accident. And although the evidence led about the general state of the pavement over a period of time leading up to the accident is not directly relevant it does provide a certain background against which I have found it a little easier to draw the necessary inference. I should also say upon this matter that I did not find the evidence of Mr Duncan to be reliable. Although I do not doubt that he carried out some sort of inspection on 25^th February I have concluded that it amounted to no more than the most cursory of checks and that his whole approach to the task was careless and complacent. If he had taken appropriate care he could not have failed to notice the defect which later led to the pursuer's fall.

 

In all the circumstances, therefore, I have found that the pursuer has established that his injuries were caused by the fault and negligence of the defenders and by their breach of the duty incumbent upon them in terms of Section 25 of the Roads (Scotland) Act 1984 to provide proper and sufficient footways for public roads.

 

There remains the issue of contributory negligence. I cannot accept the argument for the pursuer that there was no fault whatsoever on his part. It seems to me that by turning round immediately before his foot caught on the ridge he did in quite a small way contribute to his unfortunate accident even although up to that point he had been looking straight ahead and watching where he was going. I reject the contention of the defenders that at the time of the incident the pursuer was under the influence of alcohol. The pursuer gave impressive evidence that the only reason he smelled of alcohol at hospital was because he had taken whisky after the accident in an attempt to ease the pain which he was suffering. He was cross-examined at some length upon this topic and I am bound to say that I accepted everything which the pursuer had to say about the matter. I have reached the view that in all the relevant circumstances the pursuer can be held guilty of contributory negligence to the extent of twenty per cent.

 

It was agreed that expenses should follow success and, accordingly, I have made an award in favour of the pursuer.